733 F.3d 1148 (Fed. Cir. 2013), 2011-3207, Kaplan v. Conyers

Docket Nº:2011-3207.
Citation:733 F.3d 1148
Opinion Judge:WALLACH, Circuit Judge.
Party Name:Elaine D. KAPLAN, Acting Director, Office of Personnel Management, Petitioner, v. Rhonda K. CONYERS and Devon Haughton Northover, Respondents, and Merit Systems Protection Board, Respondent.
Attorney:Abby C. Wright, Attorney, Appellate Staff, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, argued for petitioner on rehearing en banc. With her on the brief were Stewart F. Delery, Acting Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorne...
Judge Panel:Before RADER, Chief Judge, NEWMAN, LOURIE, DYK, PROST, MOORE, O'MALLEY, REYNA, WALLACH, and TARANTO, Circuit Judges. [1] Opinion for the court filed by Circuit Judge WALLACH, in which RADER, Chief Judge, LOURIE, PROST, MOORE, O'MALLEY, and TARANTO, Circuit Judges, join. Dissenting opinion filed b...
Case Date:August 20, 2013
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1148

733 F.3d 1148 (Fed. Cir. 2013)

Elaine D. KAPLAN, Acting Director, Office of Personnel Management, Petitioner,

v.

Rhonda K. CONYERS and Devon Haughton Northover, Respondents,

and

Merit Systems Protection Board, Respondent.

No. 2011-3207.

United States Court of Appeals, Federal Circuit.

August 20, 2013

Page 1149

Abby C. Wright, Attorney, Appellate Staff, Commercial Litigation Branch, United

Page 1150

States Department of Justice, of Washington, DC, argued for petitioner on rehearing en banc. With her on the brief were Stewart F. Delery, Acting Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director, Douglas N. Letter and Marleigh D. Dover, Attorneys. Of counsel on the brief were Sharon M. McGowan, Acting General Counsel, Kathie Ann Whipple, Deputy General Counsel, Steven E. Abow, Assistant General Counsel, and Robert J. Girouard, Senior Counsel, Office of the General Counsel, Office of Personnel Management, of Washington, DC. Of counsel was Allison Kiddmiller, Senior Trial Counsel, United States Department of Justice, of Washington, DC.

Andres M. Grajales, American Federation of Government Employees, of Washington, DC, argued for respondents Rhonda K. Conyers, et al. on rehearing en banc. With him on the brief were David A. Borer, General Counsel, and Joseph F. Henderson, Deputy General Counsel.

Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent Merit Systems Protection Board on rehearing en banc. With him on the brief were Bryan G. Polisuk, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Thomas Devine, Legal Director, Government Accountability Project, of Washington, DC, for amicus curiae Government Accountability Project on rehearing en banc.

Elisabeth R. Brown, Attorney, United States Office of Special Counsel, of Washington, DC, for amicus curiae The United States Office of Special Counsel on rehearing en banc.

Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, of Washington, DC, for amici curiae National Treasury Employee Union, et al. on rehearing en banc. With him on the brief were Gregory O'Duden, General Counsel, Larry J. Adkins, Deputy General Counsel, Julie M. Wilson, Associate General Counsel, and Paras N. Shah, Assistant Counsel, National Treasury Employees Union, of Washington, DC.

Before RADER, Chief Judge, NEWMAN, LOURIE, DYK, PROST, MOORE, O'MALLEY, REYNA, WALLACH, and TARANTO, Circuit Judges. 1

Opinion for the court filed by Circuit Judge WALLACH, in which RADER, Chief Judge, LOURIE, PROST, MOORE, O'MALLEY, and TARANTO, Circuit Judges, join.

Dissenting opinion filed by Circuit Judge DYK, in which NEWMAN and REYNA, Circuit Judges, join.

WALLACH, Circuit Judge.

In this federal employment case implicating national security, the Director of the Office of Personnel Management 2 (" OPM" ) seeks review of the decision by the Merit Systems Protection Board (" Board" ) holding that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), limits Board review only to actions involving security clearance

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determinations, i.e., determinations concerning eligibility of access to classified information. Egan, however, is not so limited. Egan 's principles prohibit Board review of the Department of Defense's (" DoD" or the " Agency" ) determinations concerning eligibility of an employee to occupy a " sensitive" position, regardless of whether the position requires access to classified information.3 As to the Respondents, we hold that Rhonda K. Conyers (" Conyers" ) no longer maintains a cognizable interest in the outcome of this case. Ms. Conyers is therefore dismissed from this appeal. With respect to Devon Haughton Northover (" Northover" ), we reverse and remand for further proceedings.

I. BACKGROUND

Ms. Conyers and Mr. Northover 4 were indefinitely suspended and demoted, respectively, from their positions with the Agency after they were found ineligible to occupy " noncritical sensitive" positions.5 Ms. Conyers and Mr. Northover independently appealed the Agency's actions to the Board. In both appeals, the Agency argued that, because these positions were designated " noncritical sensitive," the Board could not review the merits of the Agency's eligibility determinations under Egan 's precedent.

A. The Egan Holding

In Egan, the Supreme Court held that the Board plays a limited role in adverse action cases involving national security concerns. The respondent in Egan lost his laborer's job at a naval facility when he was denied a required security clearance. 484 U.S. at 520, 108 S.Ct. 818. Reversing our decision in Egan v. Department of the Navy, 802 F.2d 1563 (Fed.Cir.1986), rev'd, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Court held that the Board does not have authority to review the substance of the security clearance determination, contrary to what is required generally in other adverse action appeals. 484 U.S. at 530-31, 108 S.Ct. 818. Rather, the Court held that the Board has authority to review only: (1) whether an Executive Branch employer determined the employee's position required a security clearance; (2) whether the clearance was denied or revoked; (3) whether the employee was provided with the procedural protections specified in 5 U.S.C. § 7513; and (4) whether transfer to a nonsensitive position was feasible. Id. at 530, 108 S.Ct. 818.

B. Ms. Conyers's Initial Proceedings

Ms. Conyers occupied a competitive service position of GS-525-05 Accounting Technician at the Defense Finance and Accounting Service.

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Conyers v. Dep't of Def., 115 M.S.P.R. 572, 574 (2010). Following an investigation, the Agency's Washington Headquarters Services (" WHS" ) Consolidated Adjudications Facility (" CAF" ) discovered information about Ms. Conyers that raised security concerns. J.A. 149-52. Effective September 11, 2009, the Agency indefinitely suspended Ms. Conyers from her position because she was denied eligibility to occupy a sensitive position by WHS/CAF. Conyers, 115 M.S.P.R. at 574. The Agency reasoned that Ms. Conyers's noncritical sensitive " position required her to have access to sensitive information," and because WHS/CAF denied her such access, " she did not meet a qualification requirement of her position." Id.

Ms. Conyers appealed her indefinite suspension to the Board. Id. In response, the Agency argued that Egan prohibited Board review of the merits of WHS/CAF's decision to deny Ms. Conyers eligibility for access " to sensitive or classified information and/or occupancy of a sensitive position." Id. (internal citation and quotation marks omitted). On February 17, 2010, the administrative judge issued an order certifying the case for an interlocutory appeal and staying all proceedings pending resolution by the full Board. Id. at 575. In her ruling, the administrative judge declined to apply Egan and " informed the parties that [she] would decide the case under the broader standard applied in ... other [5 U.S.C.] Chapter 75 cases which do not involve security clearances...." Id. (brackets in original).

C. Mr. Northover's Initial Proceedings

Mr. Northover occupied a competitive service position of GS-1144-07 Commissary Management Specialist at the Defense Commissary Agency. Northover v. Dep't of Def., 115 M.S.P.R. 451, 452 (2010). Effective December 6, 2009, the Agency reduced Mr. Northover's grade level to part-time GS-1101-04 Store Associate due to revocation/denial of his DoD eligibility to occupy a sensitive position. Id. at 453. In its Notice of Proposed Demotion, the Agency stated that Mr. Northover was in a position that was " designated as a sensitive position" and that WHS/CAF had denied him " eligibility for access to classified information and/or occupancy of a sensitive position." Id. (internal citation and quotation marks omitted).

Mr. Northover subsequently appealed the Agency's decision to the Board. Id. In response, the Agency argued it had designated the Commissary Management Specialist position a " moderate risk" national security position with a sensitivity level of " noncritical sensitive," and under Egan, the Board is barred from reviewing the merits of the Agency's " security-clearance/eligibility determination." Id.

On April 2, 2010, contrary to the ruling in Conyers, the presiding chief administrative judge ruled that Egan applied and that the merits of the Agency's determination were unreviewable. Id. The chief administrative judge subsequently certified his ruling to the full Board. Id. All proceedings were stayed pending resolution of the certified issue. Id.

D. The Full Board's Interlocutory Review of Conyers and Northover

On December 22, 2010, the full Board affirmed the administrative judge's decision in Conyers and reversed the chief administrative judge's decision in Northover, concluding that Egan did not apply in cases where security clearance determinations are not at issue. Conyers, 115 M.S.P.R. at 590; Northover, 115 M.S.P.R. at 467-68. The Board held that Egan limits the Board's review of an otherwise appealable adverse action only if that action

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is based upon eligibility for or a denial, revocation, or suspension of access to classified information.6 Conyers, 115 M.S.P.R. at 589-90; Northover, 115 M.S.P.R. at 467-68. Because Ms. Conyers and Mr. Northover did not occupy positions that required access to classified information, the Board concluded that Egan did not preclude Board review of the underlying Agency...

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